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Articles 661 - 690 of 20588
Full-Text Articles in Entire DC Network
Benched Judges, Anna Roberts
Corporate Governance Speech, Sarah Haan
The Shadow Defendants, Mariam A. Hinds
The Shadow Defendants, Mariam A. Hinds
Faculty Scholarship
Although the overrepresentation of men, specifically Black men and men of color, in the criminal legal system is well documented, the people who support these men, especially women, have garnered less attention. Women who are proximate to system-involved men—mothers, grandmothers, sisters, daughters, girlfriends, and wives—are invisible actors in the criminal legal system who perform critical tasks and provide essential support. They appear in court to demonstrate a person’s family and community ties, use their assets as collateral for bail, deposit money in commissary accounts, maintain social ties during imprisonment through letters and visits, and bear the burden of filling the …
Progressive Copyright Theory, Emily Behzadi Cárdenas
Progressive Copyright Theory, Emily Behzadi Cárdenas
Faculty Scholarship
The legacy of colonialism, dispossession, and racial injustice is foundational to existing inequalities in modern copyright law. Traditionally, the primary purpose of copyright laws was to incentivize “progress” through the dissemination of new works, thereby conferring economic benefits to both the creator and society at large. Such economic-based notions of “progress” have historically favored the creative contributions of privileged groups while simultaneously disregarding those of historically oppressed groups. Progressive property theory acknowledges that there are social responsibilities and relationships inherent in private property ownership. Scholarship on progressive property law has exposed the need to reevaluate how property law regimes perpetuate …
Taking Integrity Risks Seriously, Miriam H. Baer
Taking Integrity Risks Seriously, Miriam H. Baer
Faculty Scholarship
Several recent scandals in higher education have illuminated notable weaknesses in the academy’s scholarly self-monitoring function. Plagiarism, undisclosed conflicts of interest, and shocking allegations of data fraud have arisen in contexts suggesting real weaknesses in peer review and other internal monitoring mechanisms.
Although the legal academy is different in many ways from the rest of higher education, it is hardly immune to the familiar precursors of fraud—opportunity, pressure, and rationalizations. Moreover, the academy's reliance on student-written law reviews creates additional challenges for holding wayward legal scholars accountable for their integrity violations.
This Essay, written for a Symposium hosted by the …
Grading Legal Research, Julie Tedjeske Crane
Grading Legal Research, Julie Tedjeske Crane
Faculty Scholarship
Law school grading practices often conflict with legal research instruction goals. Small class sizes render norm-referenced (curved) grading unreliable, and the emphasis on ranking students detracts from learning essential skills. Drawing on scholarship on legal education and other disciplines, this article examines several grading approaches that may better serve students and instructors, including criteria-referenced, specification-based, and equitable grading systems. It offers practical suggestions for improving grading practices, such as working with colleagues on assessment design, being intentional about grading formative work, and using anonymous grading. The article concludes with a call for more discussion about grading in legal research courses.
100 Years Of The Federal Arbitration Act, Paul Bland, John H. Chun, Linda A. Klein, Pamela K. Bookman
100 Years Of The Federal Arbitration Act, Paul Bland, John H. Chun, Linda A. Klein, Pamela K. Bookman
Faculty Scholarship
No abstract provided.
Legal Practice Practicums: Making A Case For Change: A Way Forward, John O. Sonsteng, Michael Sonsteng, Kenneth Rubenzer
Legal Practice Practicums: Making A Case For Change: A Way Forward, John O. Sonsteng, Michael Sonsteng, Kenneth Rubenzer
Faculty Scholarship
No abstract provided.
Self-Regulation In Emerging And Innovative Industries, Daniel E. Walters, Hannah J. Wiseman
Self-Regulation In Emerging And Innovative Industries, Daniel E. Walters, Hannah J. Wiseman
Faculty Scholarship
Self-regulation—governance of firm behavior by private entities—has a long history both in the United States and globally, and there is an extensive literature on the topic. But there has been far less attention paid to the role self-regulation can play in spurring and enabling innovation and growth within emerging industries. These industries—both currently ascendant ones such as hydrogen and artificial intelligence, as well as formerly new (but now well established) activities in hydraulic fracturing and Internet communications—plausibly benefit from self-regulation’s ability to coordinate economic actors and reassure often skeptical publics. Examining the ways that self-regulation impacts this special type of …
Addressing Perceived Racial And Ethnic Disparities In Attorney Discipline, Susan Saab Fortney, Heather Zirke
Addressing Perceived Racial And Ethnic Disparities In Attorney Discipline, Susan Saab Fortney, Heather Zirke
Faculty Scholarship
Perceived racial and ethnic disparities in attorney discipline threaten public confidence in the legal profession’s fairness and equity. This Article explores whether lawyers of color are subject to a disproportionate number of disciplinary actions. It draws on studies that reveal patterns of disparate outcomes tied to factors such as practice setting, representation during proceedings, and decision-maker bias. The authors assess how systemic issues may contribute to these disparities and highlights gaps in research and transparency. To address these challenges, the Article recommends a multi-faceted approach. This includes better collection and analysis of demographic data, procedural reforms to ensure equitable treatment, …
Original Discontent, William Magnuson
Original Discontent, William Magnuson
Faculty Scholarship
There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about …
Rulemaking Petitions In A World Without Deference To Agencies: A New Lease On Life?, Daniel E. Walters
Rulemaking Petitions In A World Without Deference To Agencies: A New Lease On Life?, Daniel E. Walters
Faculty Scholarship
Often overlooked in the study and practice of administrative law, rulemaking petitions are means by which interested persons can prompt federal agencies to implement the statutes they administer in particular ways. After the Supreme Court’s 2024 decisions in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), and Ohio v. Environmental Protection Agency, 144 S. Ct. 2040 (2024), rulemaking petitions are about to experience a renaissance—one that could reshape environmental law, should environmental advocates choose to leverage the procedure.
The Globalization Of Copyright Exceptions For Ai Training, Matthew Sag, Peter K. Yu
The Globalization Of Copyright Exceptions For Ai Training, Matthew Sag, Peter K. Yu
Faculty Scholarship
Generative AI, machine learning and other computational uses of copyrighted works pose profound questions for copyright law. This article conducts of global survey of how different countries have attempted to answer these questions in relation to the unauthorized use of copyrighted works for training. Although the world has yet to achieve international consensus on this issue, an international equilibrium is emerging. Jurisdictions with common law and civil law traditions, and with varying economic conditions, technological capabilities, political systems, and cultural backgrounds, have found ways to reconcile copyright law and AI training. In this equilibrium, countries recognize that text data mining, …
The Great Unsettling: Administrative Governance After Loper Bright, Cary Coglianese, Daniel E. Walters
The Great Unsettling: Administrative Governance After Loper Bright, Cary Coglianese, Daniel E. Walters
Faculty Scholarship
“Chevron is overruled.” These three words surely captured more attention than any others in the U.S. Supreme Court’s thirty-five-page opinion in Loper Bright Enterprises v. Raimondo. For forty years, the Chevron doctrine had been virtually synonymous with administrative law. Now that the Court has taken a step that many scholars thought unfathomable even just a few years ago, speculation abounds about the possible downstream impacts of Loper Bright on both what agencies will be able to do in the future and how lower courts will respond when reviewing agency action. The vast majority of early expert commentaries suggest …
Moral Politics Theory Applied To Abortion: Utopias, Dystopias, And Dobbs, Susan Ayres
Moral Politics Theory Applied To Abortion: Utopias, Dystopias, And Dobbs, Susan Ayres
Faculty Scholarship
This article examines Moral Politics Theory (MPT) as a way to understand current tensions in the US concerning reproductive justice. MPT, as developed and researched for over thirty years by cognitive scientist, George Lakoff, provides a way to explain differences in political worldviews. According to Lakoff’s research in Moral Politics and Don’t Think of an Elephant!, conservatives tend to hold a strict-father model, and progressives hold a nurturant-parent model. People in the political middle tend to endorse both models; Lakoff labels those in the middle as “biconceptuals,” and discusses how this group is most susceptible to persuasion because metaphors frame …
Law, Conflict, And Hybrid Warfare: A Teaching Imperative For A Changing World, Cynthia Alkon, Andrea Kupfer Schneider
Law, Conflict, And Hybrid Warfare: A Teaching Imperative For A Changing World, Cynthia Alkon, Andrea Kupfer Schneider
Faculty Scholarship
Lawyers increasingly find themselves at the frontlines of the battlefield, just not in the traditional sense. Hybrid warfare is a conflict form that combines traditional military offensive measures with nontraditional methods, including the harnessing of legal systems to achieve strategic goals. Lawyers have always been at the frontline of typical legal risk assessment, thinking about a client's risk of liability or regulation costs generally. Now, lawyers must stand at the ready for a lot more: lawyers must be prepared for cyber-attacks, disinformation campaigns using artificial intelligence, the use of court systems to suppress reporting or shield bad actors, and so …
The United States Healthcare System: From Medicare To Post-Pandemic Health Policy, William M. Sage
The United States Healthcare System: From Medicare To Post-Pandemic Health Policy, William M. Sage
Faculty Scholarship
My purpose in this essay is to comment on national health policy in the United States over the past sixty years. My conclusions are less optimistic than what I had hoped when I began my teaching and research career in the 1990s to be able to say in 2025. In particular, the successful expansion of publicly supported health coverage via the passage of the Affordable Care Act (“ACA” or “Obamacare”) in 2010 seems to have triggered -- though I hesitate to say that it caused – a backsliding from broader commitments to clinical performance, population health, and social solidarity that …
"Arbitration In Name Only": A Race Claims Mismatch, Michael Z. Green
"Arbitration In Name Only": A Race Claims Mismatch, Michael Z. Green
Faculty Scholarship
With arbitration's meteoric rise as a tool in resolving statutory employment discrimination matters beginning in the 1990s, concerns about lack of employee bargaining power received little consideration when raised in court challenges to the enforcement of employer-mandated agreements to arbitrate those claims. Only in rare circumstances, when an employer appeared to go to extremes in using its overwhelming bargaining power to implement an arbitration process so clearly unfair would a court find the agreement created an unfair "arbitration in name only" that should not be enforced.
Employers have become savvier in how they require employees to agree to resolve discrimination …
Criminal Background Checks: Implications For Discrimination And Crime, Murat C. Mungan
Criminal Background Checks: Implications For Discrimination And Crime, Murat C. Mungan
Faculty Scholarship
Criminal background checks have recently attracted the attention of academics and policy makers alike. Recent laws and policies, like “ban the box” and expungements, focus on the availability of criminal background information as well as the permissibility of using this type of information. Quite surprisingly, policies about the content of the information –whose permissibility and availability are questioned by recent work– is not scrutinized as much.
In this article, I investigate the informational quality of existing background checks. For this purpose, I review the history and evolution of traditional criminal background checks. These checks rely on ‘rap sheets’ –documents containing …
Determinants Of Socially Responsible Ai Governance, Daryl Lim
Determinants Of Socially Responsible Ai Governance, Daryl Lim
Faculty Scholarship
The signing of the first international AI treaty by the United States, European Union, and other nations marks a pivotal step in establishing a global framework for AI governance, ensuring that AI systems respect human rights, democracy, and the rule of law. This article advances the concepts of justice, equity, and the rule of law as yardsticks of socially responsible AI—from development through deployment—to ensure that AI technologies do not exacerbate existing inequalities but actively promote fairness and inclusivity. Part I explores AI’s potential to improve access to justice for marginalized communities and small and medium-sized law firms while scrutinizing …
Access, Welfare, And Lawsuits: Restoring Reproductive And Economic Autonomy Post-Dobbs, Jill C. Engle
Access, Welfare, And Lawsuits: Restoring Reproductive And Economic Autonomy Post-Dobbs, Jill C. Engle
Faculty Scholarship
Access to abortion and increased poverty for women and children are inversely correlated: as access to abortion decreases, feminine and child poverty increase. Women who try to access abortions are more likely to already be mothers, and more likely to be living below the poverty line. In post-Dobbs America, abortion is illegal or severely restricted in approximately half of the states. In states where abortion access is most restricted, women and children experience poverty at the highest rates in the nation. The Supreme Court majority that decided Dobbs chose to ignore the connection between abortion and poverty. In doing …
Discord And The Pentagon's Watchdog: Countering Extremism In The U.S. Military, Amy Gaudion
Discord And The Pentagon's Watchdog: Countering Extremism In The U.S. Military, Amy Gaudion
Faculty Scholarship
In his 2022 book, Ward Farnsworth crafts a metaphor from the lead-pipe theory for the fall of Rome to consider how rage and misinformation traveling through today’s technology-enabled pipes are poisoning our civic engagement and threatening our governmental structures: “We have built networks for the delivery of information––the internet, and especially social media. These networks too, are a marvel. But they also carry a kind of poison with them. The mind fed from those sources learns to subsist happily on quick reactions, easy certainties, one-liners, and rage.”1 This Article carries the metaphor into a new context and considers what should …
Immigration, Due Process, And Executive Power, Shoba Sivaprasad Wadhia, Peter Margulies
Immigration, Due Process, And Executive Power, Shoba Sivaprasad Wadhia, Peter Margulies
Faculty Scholarship
The current Administration's approach to immigration law enforcement has augmented executive power and reduced procedural safeguards. That approach has raised questions under the Immigration and Nationality Act (INA) and the Constitution. Courts have often pushed back, although the Supreme Court has stayed judicial curbs on one area we'll discuss: Removal to a country other than the home country of the noncitizen (sometimes called third-country removal (TCR)). In other areas, such as the First Amendment rights of foreign students and the reach of the Alien Enemies Act (AEA), adjudication is moving through the courts, although the Supreme Court has imposed limits …
Crafting An Exception To The Principle Of Non-Intervention To End Military Coups, Ronnie R. Gipson Jr.
Crafting An Exception To The Principle Of Non-Intervention To End Military Coups, Ronnie R. Gipson Jr.
Faculty Scholarship
Oftentimes, when a foreign state refuses to get involved when another country is subjected to a military coup, the foreign state uses the principle of non-intervention as the reason for inaction. The principle of non-intervention in those instances takes on the role of becoming a shield against preserving or protecting human rights. Specifically, in Myanmar, the principle of non-intervention is being used as a weapon by the military junta, allowing it to strengthen its grip on the levers of power and crush any fledgling opposition to its rule with unimaginable cruelty and violence. This article advances the premise that a …
Zoning The Subsurface, Hannah Jacobs Wiseman, Anne Menefee, Seth Blumsack, Michael Helbing
Zoning The Subsurface, Hannah Jacobs Wiseman, Anne Menefee, Seth Blumsack, Michael Helbing
Faculty Scholarship
The vast rock formations underlying the United States stand at an important Demsetzian turning point, at which the externalities of inadequately defined property rights justify the costs of solidifying formal property rights for this resource. This need arises from the growing scarcity of pore space (tiny openings) in subsurface rocks—property that is critical to address climate change. Efforts to mitigate and adapt to climate impacts require large-scale underground storage of carbon dioxide, water, and energy within the pore space of subsurface reservoirs. The subsurface will also continue to house millions of miles of pipelines, hundreds of thousands of waste disposal …
The Unconscionably Short Warranty, Marie T. Reilly
The Unconscionably Short Warranty, Marie T. Reilly
Faculty Scholarship
A typical consumer product warranty covers products for defects that appear before the warranty period expires. If the manufacturer warrants a vehicle for five years or 60,000 miles, whichever occurs first, problems that require repairs after the warranty period expires are outside the warranty and, therefore, the buyer's problem. Advocates for consumers have developed a theory to escape the claim-barring consequence of expiration of the warranty period. They have argued with some success that the warranty period that would otherwise bar their claim is unconscionable and thus unenforceable under Uniform Commercial Code ("UCC") section 2-302. The warranty period term, they …
The Time Has Come To Stop The Bloodshed In Myanmar And Restore The People's Democratically Elected Government, Ronnie R. Gipson Jr.
The Time Has Come To Stop The Bloodshed In Myanmar And Restore The People's Democratically Elected Government, Ronnie R. Gipson Jr.
Faculty Scholarship
Although the Myanmar coup occurred in February 2021, the world paid little attention mostly because the citizens were not white, not European, and the country did not hold huge oil reserves. Subsequent to the coup, Russia invaded Ukraine in 2022, and Israel responded to the Hamas attack on its territory by invading Gaza in 2023. Both of these events assured that the international community paid little to no attention to the plight of the people of Myanmar under the thumb of a repressive military dictatorship after having their freely elected democracy ripped away. If Ukraine is worthy of global attention, …
Birth On Mother Earth: Mitigating The Maternal Health Crisis, Jill C. Engle
Birth On Mother Earth: Mitigating The Maternal Health Crisis, Jill C. Engle
Faculty Scholarship
Maternal health outcomes in the U.S. are remarkably poor, especially when compared to those in other industrialized countries. For example, our maternal death rate is more than twice that of Canada’s. Women of color in the U.S. suffer maternal morbidity and mortality at rates considerably higher than white women. Indigenous women experience the worst maternal health outcomes of all. Yet, most maternal deaths and injuries are preventable. Furthermore, rates of maternal harm, including death, are lower when midwives and similar birthing attendants are involved. This Article is the first to fully explore the unique skillset of traditional birth attendants (TBAs). …
Should We Watch The Watcher Or The Watched? The Transparency Debate In Auditor Regulation, Sarah Williams
Should We Watch The Watcher Or The Watched? The Transparency Debate In Auditor Regulation, Sarah Williams
Faculty Scholarship
Federal law has mandated the use of outside auditors by public companies since 1934. For much of that time, the audit industry watched itself. It monitored audit quality and decided how to address auditor misconduct. In 2002, Congress created the Public Company Accounting Oversight Board (“PCAOB” or “Board”) to watch the auditors. The legislation designed a regulatory scheme that presumed audit performance could be improved through an open and cooperative relationship between the regulator and the regulated audit firm. Congress created accountability for the agency by mandating that it disclose its oversight activities to the public (an approach characterized as …
Vesting Villainy: The Call To Ban 401(K) Vesting Schedules, Samantha Prince
Vesting Villainy: The Call To Ban 401(K) Vesting Schedules, Samantha Prince
Faculty Scholarship
The American employee’s efforts to accumulate retirement wealth have been stunted by 401(k) plan vesting schedules for over half a century, yet vesting schedules continue to be legally permissible and pervasively used. Empirical research now exists to show the astronomical number of American workers that annually lose their employer contributions due to vesting schedules—over 1.8 million across 909 plans in 2022 alone. The same research also reveals that in 2022, workers forfeited over $1.5 billion in retirement savings. Critically, employers recycled over 82% of these funds, directly reducing their own contribution obligations. Many private-sector employees in the United States rely …